Date: 10-01-2007

Case Style: David Swenson and Barbara Swenson v. David V. Erickson and David R. Limberg

Case Number: 20060190

Judge: Nehring

Court: Supreme court of Utah on appeal from the Third District Court of Salt Lake County

Plaintiff's Attorney:

Budge W. Call, Salt Lake City, Utah

Defendant's Attorney:

J. Thomas Bowen, Midvale, Utah

Description:

1 On this, their second visit to this court, the plaintiffs provide us with the opportunity to hold that, in ruling on their first appeal in Swenson v. Erickson (Swenson I), 2000 UT 16, 34, 998 P.2d 807, we intended to permit the property owners in the Quail Point Subdivision to vote to change their restrictive covenants on January 1, 2004, during the daylight hours and not just within the sixty seconds between midnight and 12:01 a.m.

BACKGROUND

2 With a brief chronicle of events, we endeavor to explain how a dispute between aggrieved property owners could produce the issue before this court and the odd outcome advocated by one of the parties. David and Barbara Swenson, David Limberg, and David Erickson own adjacent lots in the Quail Point Subdivision in Sandy, Utah. The subdivision is subject to restrictive covenants that were recorded in July 1973. In 1997 Mr. Erickson began constructing a shed on his property, allegedly in violation of the neighborhood's restrictive covenants. The Swensons filed suit in district court seeking an injunction barring Mr. Erickson from completing the shed. The district court granted the Swensons' request and held that the structure violated the subdivision's restrictive covenants that state in part, "No structure shall be erected, altered, placed or permitted to remain on any ‘residential lot' other than one detached single family dwelling, a private garage, a guest house, and outbuildings for pets as hereinafter described." Swenson I, 2000 UT 16, 5, 998 P.2d 807.

3 Mr. Erickson changed tactics and sought to terminate the restrictive covenants that barred his proposed construction project. A majority of the Quail Point property owners supported the termination and, after a vote on the issue, filed a notice of termination with the Salt Lake County Recorder dated October 3, 1997. Believing he had cleared the way to finish construction on his building, Mr. Erickson moved to dismiss the Swensons' lawsuit and lift the injunction. The district court granted the motion, and the Swensons appealed.

4 In Swenson I, we held that by their own terms the restrictive covenants were immune from termination except on January 1, 2004, the date on which the covenants would automatically renew unless modified or terminated. Mr. Erickson waited. When New Year's Day of 2004 finally arrived, he and the other Quail Point property owners met at noon. By 2:00 p.m., they had once again voted to terminate the restrictive covenants. After the vote, the property owners recorded another notice of termination in March.

5 The Swensons countered the renewed notice with another lawsuit. This time, the Swensons sought to invalidate the termination of the restrictive covenants by arguing that the covenants permitted their provisions only to change and not to terminate and that the covenants had already automatically renewed by the time the termination vote took place. The district court rejected both arguments, and the Swensons appealed. The court of appeals affirmed. Swenson v. Erickson (Swenson II), 2006 UT App 34, 1, 131 P.3d 267. The Swensons sought certiorari review in this court. We granted the Swensons' petition to determine whether the Quail Point property owners voted too late to change the subdivision's bylaws and must wait another ten years. We affirm.

* * *

Outcome: ¶12 By interpreting article XIV to permit a vote to occur at any time on January 1, we provide a voting window that fairly accommodates each of the principles informing article XIV and thereby conforms to the intent of the parties to the covenants. We accordingly affirm the judgment of the court of appeals.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: None